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Showing 121 to 140 of 1078 Records
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2014 (6) TMI 959 - CALCUTTA HIGH COURT
Legality of deposit of 25% of amount for the first time as this question has not been dealt with by the Single Bench - Tribunal while passing interlocutory order under Section 35F had relied upon a decision in the case of Vandana Global Limited v. Commissioner of Central Excise, Raipur reported in [2010 (4) TMI 133 - CESTAT, NEW DELHI (LB)] and directed deposit of 25% of the duty imposed by the assessing officer - Appellant contended that the aforesaid judgment is no longer a good law. As such, the Single Bench has remitted the matter for hearing afresh to the Tribunal directing it to dispose of the application seeking waiver of pre-condition of deposit of duty and to pass a reasoned order in accordance with law. The said order remitting the case to the Tribunal to decide the application afresh has been questioned by way of the intra Court appeal.
Held that:- the decision of Vandana Global Limited which was relied upon by the Tribunal has been set aside. Thus, fresh decision is required to be relied upon and the Single Bench has considered it appropriate to relegate the matter before the Tribunal to decide the application afresh. We cannot take the onus upon ourselves so as to decide the legality of the deposit of 25% of the amount for the first time as this question has not been dealt with by the Single Bench. - Decided against the revenue
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2014 (6) TMI 958 - BOMBAY HIGH COURT
Deduction for provision made on account of liability towards contribution to Drug Price Equalization Account (DPEA) - ITAT allowed the claim - Held that:- The Tribunal in the instant case has followed the judgment of the Honourable Supreme Court in the case of Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971 (8) TMI 10 - SUPREME Court]. In view thereof and finding that the Tribunal's order is in consonance with the facts and circumstances of the case, so also, the statutory liability having been created in the year in question and which has no bearing on the pending proceedings initiated by the Assessee or the dispute raised therein that we find that this question cannot be termed as substantial question of law.
Deduction u/s 43B on account of non payment of Sales Tax - - ITAT allowed the claim - Held that:- Tribunal has held in favour of the Assessee by observing that the liability in relation thereto was also an issue raised for Assessment Year 1984-1985. . The Revenue surprisingly does not question the common order of the Tribunal for these years. See CIT v. Hindustan Lever Ltd [2014 (4) TMI 1012 - BOMBAY HIGH COURT ]. The question will have to be decided against the Revenue and in favour of the Assessee.
Expenses incurred on installation of computer software, expenses on electrical work and expenses on installation of lifts - whether fall within the ambit of revenue expenditure? - Held that:- In relation to this the Tribunal in the impugned order observed that there is room for certain flexibility in the views taken from time to time. The Assessee in such cases installs the computers. This technology is now said to be acceptable in changing world. The rapid advancement of research also contributes a small degree of endurability, but that by itself does not mean that the expenses incurred cannot be revenue in nature. Since technology advancement is an aspect which must be taken judicial note of, so also, machinery becoming obsolete that there is necessity of acquiring further technology. This is to meet the growing competition and considering trends in the market. Therefore, such expenditure will have to be treated as revenue expenditure - Decided in favour of the Assessee.
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2014 (6) TMI 957 - ITAT PUNE
Disallowance u/s.14A - Held that:- Since in the instant case the assessee has not received any dividend income out of the shares held as investment and since no disallowance u/s.14A has been made in the preceding as well as succeeding assessment years, therefore, we agree with the contention of the Ld. Counsel for the assessee that no disallowance u/s.14A can be made under the facts and circumstances of the case. Accordingly, the order of the CIT(A) is setaside and the Assessing Officer is directed to delete the disallowance made u/s.14A. - Decided in favour of assessee
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2014 (6) TMI 956 - CLACUTTA HIGH COURT
Non filing of paper book - Held that:- The appellant is directed to prepare requisite number of paper books and file the same in the Department within eight weeks from date after serving copy thereof upon the respondent, failing which the appeal shall stand dismissed without any further reference to the Bench
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2014 (6) TMI 955 - CESTAT CHENNAI
Restoration of appeal - Dismissed for non-compliance - Assessee prayed that it may be permitted to deposit the balance amount of ₹ 37,00,000/- in instalments - Held that:- the applicant had not complied with the stay order till date. Besides, there is no provision for allowing to pay the balance pre-deposit amount in instalments, after dismissing the appeal. - Decided against the applicant
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2014 (6) TMI 954 - ITAT CHENNAI
Disallowance u/s 14A - Held that:- We apply the decision of CIT vs Vegetable Products Ltd [1973 (1) TMI 1 - SUPREME Court] and in the view favourable to the assessee is followed. So, in principle, we hold that the authorities below have wrongly invoked section 14A in case of investments held as ‘stock-in-trade’ wherein the ‘exempt’ income by way of dividends is only incidental. It is also made clear that since there is no verification of the factual position of investments held as ‘stock-in-trade’, we accept the assessee’s contentions in principle only and remit the issue back to the Assessing Officer to determine the true factual position. The assessee’s alternative plea carries only an academic significance. The relevant ground is accepted for statistical purposes.
UPS attached to the computers are part of computer systems and eligible for depreciation @ 60% and directed the Assessing Officer to allow depreciation on UPS @ 60%
Restricting relief @ 90% of the tax paid in foreign countries - Held that:- CIT(A) has quoted a notification No.S.O 2123(E) dated 28.8.2008 clarifying that in such a case involving a DTAA, an income has to be included in the total receipts and the necessary relief is to be granted by ‘elimination’ method or as per the terms of agreement seeking to avoid double taxation. He relies upon Finance Act, 2012 inserting explanation 3 to section 90 making the notification retrospectively applicable. In this manner, the CIT(A) has directed the Assessing Officer to allow relief to the assessee as per the aforesaid notification.
Section 115JB could not have been invoked in a bank’s case.
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2014 (6) TMI 953 - CESTAT MUMBAI
Entitlement to SSI exemption under Notification No. 1/2003-C.E. - extended period of limitation invoked - Held that:- This Tribunal held it is the case of joint ownership brand “Ravi Masale” by the family members and each of the family member could use the brand name on the products manufactured by them and, accordingly, dismissed the appeal of the Revenue, holding that the assessee is entitled to SSI exemption.
The logo of Jain Group and the words ‘Jain Pipe’ do not belong to any particular company or manufacturer. Further, the respondents have used the words “JAIN PIPE - JPPL”, which identifies the goods with them only in particular. There is no categorical finding nor claim by any other manufacturer as to ownership of “JAIN PIPE”, brand name. We further hold that under the facts and circumstances, there being regular disclosures to the Revenue by the appellant, no case of suppression of facts or contumacious conduct is made out. Hence, extended period of limitation is not attracted. - Decided in favour of assessee
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2014 (6) TMI 952 - MADRAS HIGH COURT
Genuine reasons for delay - Petitioner produced C form belatedly for which sufficient reason has been given but not accepted by revenue - Held that:- the section clearly says that it is for the petitioner to give reasonable cause for the delay. In this case, due to personal inconvenience, the petitioner has produced the C form belatedly. Normally, illness of the family members should have been taken into consideration. Taking into consideration the personal inconvenience, which has been brought to the notice of the respondent by relevant documents, the respondent could have shown some leniency considering the facts and circumstances of the present case. But, the respondent has not done so. Therefore, the impugned order is set aside. - Matter remanded back
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2014 (6) TMI 951 - KERALA HIGH COURT
Eligibility of revocation of amnesty, granted for the years 2002-03 to 2004-05 - Revocation was not notified as provided under sub-section (6) of section 23 of the KGST Act, 1963 - Default to maintain sufficient amounts to honour the cheques issued - Two cheques were presented having been honoured and the amounts collected thereby having been appropriated towards the interest dues of the petitioner under section 55C of the Act. Appropriation under section 55C being a statutory mandate; is not a question to be addressed in a notice under sub-section (b) of section 23B - Held that:- the default of the assessee to remit amounts on or before the last date stipulated, dis-entitles the assessee, without anything more from settling its arrears under the scheme. Neither a notice nor a revocation order is contemplated on default made by the assessee to pay the amounts stipulated before the last date notified. There is absolutely no infirmity, in the assessing officer having declined the petitioner's continuance under the Amnesty Scheme which is a consequence of the petitioners default. The petitioner cannot claim any further eligibility under the Amnesty Scheme especially since the period is over, and there can definitely be no adjustment under one year and revocation in the others. Therefore the petitioner's claims are not valid under the provisions of Section 23B and the appropriation under section 55C cannot in any manner be assailed, since that is a statutory compulsion, not open for debate or adjudication. A payment beyond time was found to be liable to adjustment or entitled for refund as the law provides and appropriation under section 55C is what the law provides, herein followed by Hemalatha Gargya v. Commissioner of Income-tax (AP) [2002 (11) TMI 6 - SUPREME Court]. - Decided against the petitioner
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2014 (6) TMI 950 - CESTAT CHENNAI
Direction of Predeposit and report of compliance - By Tribunal's Stay Order dated 12.6.2012 and High Court judgement dated 21.4.2014, the appellant was directed to deposit the sum of Rs. One crore within eight weeks from the date of its order - Held that:- as there is no compliance report on the record, the appeal is dismissed for non-compliance of stay order dated 12.6.2012 passed by the Tribunal as well as the Hon’ble High Court’s order dated 21.4.2014. - Decided against the appellant
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2014 (6) TMI 949 - CESTAT NEW DELHI
Reasons for enhancement of assessable value - Not provided by the lower authority - Authority proceeded to deal with implication of Rule 12 of Valuation Rules when appellant did not disclosed the reason for enhancement of assessable value - Adjudication also could not given reasoning for why the declared value should be disturbed - Held that : Law is well settled that right to remedy cannot be extinguished by confession. When there is obligation in the law, there is remedy prescribed. Commissioner (Appeals) in relying upon Rule 12(2) of his order appreciated that the appellant could have asked for a speaking order. He has also stated that the appellant did not choose to do so. It is surprising how appellate authority acted to the determent of justice when he himself is empowered to speak reason why enhancement was warranted. So, if there is any fault find of the assessee, it is not permissible to him to bury natural justice. Assessee has every right to know the reason why he is proposed to be dealt in the manner the order conceived to deal him. Therefore, Appellate authority's order is not sustainable. - Decided in favour of appellant
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2014 (6) TMI 948 - CESTAT AHMEDABAD
Waiver of pre-deposit - Differential duty - Non achievement of Net Foreign Exchange Earnings as per performance of export - Appellant had exported the goods manufactured out of the raw materials imported but there is a short fall of exports which was accepted by the appellant. As per appellant the short-fall is approximately 1.63% while the adjudicating authority has recorded the short-fall of approximately 21.47% but DGFT authorities ordered short-fall of approximately 9.32% - Held that: as adjudicating authority is at variance against the DGFT authority’s findings and the claim made by the appellant, as to there being short fall of 1.63%, the issue needs detailed analysis and needs deeper consideration. Therefore, the appellant should be put to some condition to hearthe appeal for which he has to deposit an amount of ₹ 10,00,000/- (Rupees ten lakhs only). - Stay granted with waiver of balance amount
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2014 (6) TMI 947 - KARNATAKA HIGH COURT
Penalty under Section 271(1)(c) - difference in valuation of stock and expenses on staff and coolie - Held that:- As after the returns were filed, in the course of survey proceedings, it was found that there was difference in valuation of stock and expenses on staff and coolie. The assessee without a murmur filed second revised return and offered it for tax and paid tax and interest promptly. In the course of assessment proceedings, the assessee tried to justify its returns and had produced before the authorities all its books of account, invoices, check post certificates and delivery notes. When the Assessing Authority called upon the assessee to secure the confirmation letters and also to produce the creditors before him, the assessee was successful in getting confirmation letters from everyone, but could not produce some of the creditors. Only in respect of those creditors whose presence it could not secure which was six in number, the assessee agreed to write off the said persons and offered it for tax. Hence, the assessee was called upon to file second revised returns which it promptly filed and paid the tax with interest. It is not a case where the assessee did not offer any explanation nor the explanation offered by it was found to be false or not found to- be bona fide. Partially it was successful in proving its defense. Therefore, it is a case where, the assessee was not successful in establishing his defense. Therefore, there was no intention either to suppress information or to file any incorrect statement. At this juncture it is pertinent to note that in the notice issued to the assessee, the department has not made it clear what is the accusation against the assessee and it was full of blanks. In those circumstances, the Tribunal on proper consideration of the entire material on record and after taking note of the law on the point as decided by the various courts, rightly held that there is no suppression of material facts and was justified in setting aside the order passed by the First Appellate Authority as well as the Assessing Authority. - Decided in favour of the assessee
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2014 (6) TMI 946 - BOMBAY HIGH COURT
Appeal ADMITTED on the following substantial questions of law:-
A) Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in deleting the addition of ₹ 3,73,95,334/made by the Assessing Officer and confirmed by the learned Commissioner of Income Tax (Appeals) which was a receipt without consideration and taxable under Section 56(2)(v) of the Income Tax Act, 1961?
(B) Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in holding that the act of the Assessee in abstaining from contesting the Will of Mrs.Bamji would constitute the consideration for which payment had been received by the Assessee from Mr.Bhavsar and thereby the provisions of Section 56(2)(v) of the Income Tax Act, 1961 were not applicable?
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2014 (6) TMI 945 - ITAT MUMBAI
Disallowance being rural development expenditure - Held that:- Respectfully following the decision of the Tribunal in assessee’s own case for 2000-01 and 2001-02 and for A.Yrs. 1998-99 and 1999-2000, we direct the AO to allow the expenditure incurred on Rural Development. - Decided in favour of assessee
Addition of MODVAT (CENVAT) to be made in closing stock - Held that:- No addition of MODVAT (CENVAT) to be made in closing stock in AY 2001-02 as held by CIT(A). However if it is held that closing stock for AY 2001-02 to be increased by CENVAT of ₹ 4,83,99,629 as held by AO, then opening stock in AY 2002-03 shall also be increase by CENVAT of ₹ 4,83,99,629. The AO may be directed accordingly.
Deduction claimed u/s 36(1)(iii) for interest on loans taken for new projects/ expansion / modernization - Held that:- We find that in the earlier years the claim of interest has been allowed making this grievance of the assessee infructuous.
Allowance of marketing and technical knowhow expenses - assessee claimed that if the said expenditure is not allowed as Revenue expenditure, then the same may be considered for the purpose of depreciation - Held that:- We find that the said expenditure has been allowed as Revenue expenditure in A.Y. 2000-01 thereby making this grievance of the assessee becomes infructuous and it is dismissed accordingly.
Premium on early redemption of debentures - Held that:- We find that the entire expenditure has been allowed in assessment year 2000-01, therefore there remains nothing to be allowed during the year under consideration.
Addition u/s 43B(f) being provision made for leave salary - Held that:- In order to apply the provisions of Sec. 43B not only should be the liability to pay the tax or duty be incurred in the accounting year but also should be statutorily payable in the accounting year. In our considered opinion, the provision for leave salary is not a statutory liability but only a contractual liability which is payable only if the employees resigns or retired from the services. We also find that the Hon’ble Calcutta High Court in the case of Exide Industries Ltd. (2007 (6) TMI 175 - CALCUTTA High Court ) has struck down Sec. 43B(f) being arbitrary, unconscionable and dehors the Apex Court decision in the case of Bharat Earth Movers [2000 (8) TMI 4 - SUPREME Court] . Respectfully following the afore discussed decisions, we direct the AO to allow the claim of provisions for leave salary - Decided in favour of assessee
Payment made for restructuring of 161h & 17th series debentures - Held that:- The Hon’ble Supreme Court in the case of Associated Cement Co. Ltd. [1988 (5) TMI 2 - SUPREME Court] has laid down that whereby incurring expenditure, no capital asset is created but the expenditure enable the assessee to avoid a recurring revenue expenditure in future, the same would be revenue expenditure. Further, if an expenditure is of the nature described in any of the specified Sec. i.e. Sec. 30 to 36, the same cannot be fall within Sec. 37(1) of the Act. We find that the facts and issues are entirely covered by the decision of the Hon’ble Gujarat High Court in the case of Mohit Marketing Vs CIT [2005 (4) TMI 546 - GUJARAT HIGH COURT ] thus we direct the AO to allow the entire claim - Decided in favour of assessee
Depreciation on goodwill - Held that:- Respectfully following the decision of the Co ordinate Bench in assessee’s own case for A.Y. 2000-01., we direct the AO to allow the claim of depreciation on Goodwill. - Decided in favour of assessee
MAT computation - Held that:- Not to reduce the claim of deduction u/s. 80IB of the Act by allocating Head Office expenses to profits derived from eligible units.
Enhancement and withdrawing the exemption u/s lOB on the ground that undertaking is not approved by the Board particularly appointed u/s 14 of the Industrial (Development and Regulation) Act - Held that:- If the claim of deduction/exemption is allowed in earlier years, the same cannot be withdrawn in subsequent years unless deductions allowed in the initial year is withdrawn. We find that there is no change in the facts which were in existence during the year vis-à-vis the claim of exemption u/s. 10B of the Act. We also find that this is not the first year of claim therefore the department cannot deny the benefit of Sec. 10B without withdrawing the claim allowed in the initial assessment year.
Recompute the deduction u/s. 80HHC under MAT provisions as per law and keeping in view the decision in the case of Bharati Information Tech. Pvt. Ltd. [2011 (10) TMI 19 - Supreme Court of India ].
Disallowance u/s 14A - Held that:- We find that the major investment of the assessee is in its group companies. After considering this facts, the Ld. CIT(A) has restricted the disallowance to ₹ 1.87 lakhs. We do not find any reason to interfere with the findings of the Ld. CIT(A).
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2014 (6) TMI 944 - ITAT HYDERABAD
Assessment u/s 153C - Held that:- The person who has passed the order in the case of the searched person u/s. 153A of the Act is required to record the satisfaction note before completion of assessment u/s. 153A of the Act. The CIT(A) categorically held that/there was recording of satisfaction by the Assessing Officer of searched party and thereafter notice u/s. 153C was issued since the assessee was a party to a transaction as per the evidence seized in the course of search action u/s. 132 of the IT Act in the case of AV Prasad Group cases and the AR is not able to controvert these findings. Being so, it is to be held that invoking of provisions of section 153C in these cases is justified.
Capital gain - whether the property represents a capital asset and the gain on transfer of the land is taxable under the head 'short term capital gain' - main contention of the assessee's counsel is that sale of land was exempt u/s. 2(14) - Held that:- In a case where the purchase has been made solely and exclusively with the intention to resell at a profit and the purchaser has no intention of holding the property for himself or otherwise enjoying or using it, the presence of such an intention is a relevant factor and unless it is offset by the presence of other factors it would raise as strong presumption that the transaction is an adventure in the nature of trade. Even so, the presumption is not conclusive and it is conceivable that, on considering all the facts and circumstances in the case, the court may, despite the said initial intention, be inclined to hold that the transaction was not an adventure in the nature of trade. The presumption may be rebutted. In the present case, considering the facts and circumstances of the case it cannot be considered as an adventure in the nature of trade. The intention of the assessee from the inception was to carry on agricultural operations. Merely because of the fact that the land was sold in a short period of holding, it cannot be held that income arising from the sale of land was taxable as profit arising from the adventure in the nature of trade or capital gain. The period of holding should not suggest that the activity was an adventure in the nature of trade.
In view of our above discussion, in our opinion, the land is not situated within the Qutubullapur municipality, but, the same situated in the Dundigal village and the evidence brought on record suggest that the land is an agricultural land, hence, it is not liable for taxation. Accordingly, the addition made on this count is deleted in all the appeals under consideration - Decided in favour of assessee
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2014 (6) TMI 943 - BOMBAY HIGH COURT
Appeal admitted on the following substantial questions of law:
a) Whether, the Income Tax Appellate Tribunal was right in holding that the provisions of Section 36(1)(viia) of the Income Tax Act, 1961 do not apply to bad debts report of two advances made by nonrural branches particularly after the insertion of Explanation 2, after the renumbered Explanation 1 to clause (viia) of subsection (1) of Section 36 by the Finance Act, 2013 with effect from 01st April, 2014?
(b) Whether, on the facts and circumstances of the case and in law, the Tribunal was justified in deleting the addition on account of reversal of unrealized interest?
(c) Whether, the reversal of interest was permitted in law in view of the specific provisions of Section 43D of the Income Tax Act, 1961 according to which such interest is taxable in the year of credit or receipt whichever is earlier?
(d) Whether, on the facts and circumstances of the case and in law, the Tribunal was justified in deleting the addition on account of provision for Rural Advances and provision against bad and doubtful debts?
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2014 (6) TMI 942 - ITAT DELHI
Deduction in respect of R&D expenses - revenue v/s capital expenditure - Held that:- It is admitted that AO in this case has not verified the allowability of the expenditure. He has specifically asked the Ld. CIT(A) that the same will be done if directed by him. It is not a case that the Ld. CIT(A) has himself examined the nature of these expenses and examined the allowability of these expenses as to whether the same were incurred wholly or exclusively for the purpose of business. As a matter of fact that Ld. CIT(A) has not even mentioned about the quantum of R&D expenses in his appellate order. There is no mention about the examination about nature of expenses. In these circumstances, in our considered opinion, interest of justice will be served if the matter is remitted to the file of the AO. The AO is directed to examine the issue of allowabilty of R&D expenses, after giving the assessee proper opportunity of being heard.
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2014 (6) TMI 941 - ITAT DELHI
Transfer pricing adjustment - whether the assessee constitutes a Permanent Establishment in India in terms of Article 5 of the DTAA between India and the USA? - Held that:- We agree with the Ld. CIT(A) that the compensation which has been represented to a sale consideration for the equipment represent the payment for works contract where entire installation and customisation has been carried out in India. That the subsidiary has not only acted as a service provider for the assessee, but at the same time acted as a sale outlet cooperating with after sale service and also providing any assistance or service requested by the assessee. The assignment agreement between Indian subsidiary (assignor), the assessee company (assignee), the parent company Nortel Network Canada (the guarantor) and Reliance Infocom (the Purchaser) indicates that the contract initially signed by the Indian company gets assigned by the Indian subsidiary to the assessee and all the risk and responsibility in this regard are assumed by the parent company.In the background of the aforesaid discussion, we agree with the Ld. CIT(A) that activities of the assessee in India constitute PE of the Assessee in terms of Article 5 of the Indo US DTAA. The activities carried out by the PE are the core activities of the assessee resulting in generation of income to the assessee and they cannot be considered to be preparatory and auxiliary and therefore, the contention of the assessee that it do not have PE in India is rejected.
Profits arising to the assessee from supply of telecom hardware to Indian customers is attributable to the PE in India @50% as per CIT(A) - Held that:- We are in agreement with the AO that the accounts of the assessee furnished in the assessment proceedings have no sanctity. The same were not audited. The gross trading loss incurred from transaction within the group cannot be explained except for the reasons, that it has been designed as such to avoid taxation in India. Hence, we agree that for all purposes the accounts of the Nortel Group would give a true and correct picture of the profit of the assessee. Hence, AO’s reference to the global accounts of the Nortel and gross profit margin percentage as 42.6% is accepted. Now we come to the issue as to how much of the profit is attributable to the PE. The AO in this regard has only allowed 5% of the turnover as deduction pertaining to other selling general and marketing expenses.
We find that Ld. CIT(A) has held that AO was justified in resorting to Rule 10 as stated hereinabove. We have already concurred with the same. We find ourselves in agreement that the CIT(A)’s proposition that when profits are computed under Rule 10 after applying the profit rate, the expenses pertaining to the PE have to be allowed as deduction. Assessee has contended before the Ld. CIT(A) that in other cases attributed profits was determined @ 20% in the case of Nokia and 35% in the Rolls Royce. In this regard, Ld. CIT(A) has held that income of the PE has to be computed on the facts of each case. Ld. CIT(A) has held that he was of the view that an attribution of 50% of the profits to the activities of PE in India would be a reasonable attribution.
Thus we note from the gross profit computed by reference to the rate applicable to the global accounts of the assessee, further substantial deduction has been allowed for selling general and marketing expenses and also R&D expenses. Thereafter, 50% of the resultant figure has been attributed to PE. This in our opinion meets the ends of justice.
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2014 (6) TMI 940 - CESTAT MUMBAI
Cenvat credit reversal - Held that:- As in the facts and circumstances, it is more a case of interpretation of the legal statute and no case is made out of any suppression, fraud or disregard to the provisions of law. The appellant-assessee, without any protest immediately reversed the Cenvat credit on being so pointed out to at the first opportunity, almost 20 months before issuance of the show cause notice. In this view of the matter, in the interest of justice, set aside the imposition of penalty and interest sustained vide the impugned order, but under the facts and circumstances, amount of Cenvat credit reversed is upheld and the same stands confirmed.
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